Impact of Tikanga on employment processes

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What does a mana enhancing employment process look like? The recent Employment Court case of GF v Customs [2023] NZEmpC 101 is of note, due it its consideration of tikanga principles in an employment law context.

This judgment is also the first Employment Court decision to consider tikanga following the Supreme Court’s decision in Ellis, which confirmed the place of tikanga as part of New Zealand’s common law. The Chief Judge noted that:

“the Tikanga values identified in this case seem to me to sit entirely comfortably with an area of law which is relationship centric, based on mutual obligations of good faith and focused (where possible) on maintaining and restoring productive employment relationships”.

Customs had incorporated a number of tikanga values and principles in their employment documentation, including GF’s employment agreement and various policies. The Chief Judge found that Customs had failed to give due consideration to these tikanga principles in the process it conducted and its decision to dismiss GF.

The Court held that, despite the fact that GF was not Māori, Customs should have considered how the tikanga values it had committed itself to should inform its conduct in dealing with employment relationship issues. In short, where an employer has incorporated tikanga, whether these principles have been considered and engaged with will be relevant to the ultimate question of whether the employer’s actions were those of a fair and reasonable employer, and whether those actions aligned with the statutory duty of good faith.

In an obiter comment, the Chief Judge also expressed a view that it is ‘seriously arguable’ that the Public Service Act places heightened “good employer” obligations on public service organisations. These ‘heightened’ obligations are also relevant to an assessment of whether the ‘fair and reasonable’ test for justification, and duty of good faith, have been met.

The Court accepted that it is not for the judiciary to determine what tikanga is or what tikanga values are. Depending on the circumstances and the evidence, the Court may seek reports from tikanga experts where tikanga is relevant to a fundamental issue in dispute.

The expert witness called by the plaintiff gave (unchallenged) evidence that in this case, tikanga could entail:

  • Face to face discussions with the affected employee with a view to reaching consensus,
  • Ensuring the right people were present at such discussions, including those who were professionally close to the affected person (such as GF’s line manager, who knew the plaintiff and the work that they did),
  • Designing and implementing an individualised process, and
  • Ensuring minimal damage to the relationship, including post-employment if a continuing relationship was not possible. Customs’ role as a kaitiaki could also involve providing post termination care and counselling.

These steps will not necessarily apply in every case, as they are specific to the interpretation of the tikanga values Customs had committed to in its employment documentation. However, it does give an insight into the type of practical obligations which may result from referencing particular tikanga principles in employment agreements and policies.

This case highlights that if you have incorporated tikanga values and principles into your employment documentation, you will need to give careful thought as to how they will apply in each situation. This may include consulting with the people concerned in the process about how they view those tikanga principles as applying, and the practical steps that parties can take to adhere to these obligations.

For more information, or for specialist advice on any employment issues, please contact a member of our Employment Law team.

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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